U&PU is not a daily journal but a Blawg, defined by lawyer/blogger Denise Howell (Bag and Baggage) as "a web log written by lawyers and/or concerned primarily with legal affairs." Topics, however, will also include linguistics, politics, philosophy, literature, and, occasionally, Other Things. Read, share, and enjoy. Some rights reserved.

Wednesday, July 06, 2005

In defense of Roberts

I googled "Switch in Time" and you know? - even when I included Judge Pollak's name, the thing that popped out, Edward Lazarus' article praising Judge Pollak's reconsideration in the famous fingerprints case, see "Why judges rarely change their minds," was part of the problem.

There's a line of dialogue in a book that I like a lot, one that asks, "Was there ever anything that 'everyone knew' that ever turned out to be true?" [Incidentally: the response, in a hard-to-find short story titled "A Rose By Any Other Name," by sci-fi author Spider Robinson, ran along the lines of, "Ice is cold. Fire will burn you. Falls can kill you" and finished with the truism that "everyone knew to be true" that was in this case similarly true. (Don't bother me with dry ice or cool fire or safe falls; that's not the point). This is not one of those exceptions.]

Everyone knows that Roberts switched his vote, without further jurisprudential consideration, but based only the prudential consideration that Roosevelt was going to pack the Court and something had to be done. Everyone, in this case, is very wrong.

Judge Louis H. Pollak, acclaimed by the abovementioned E. Lazarus as one of the best federal judges in the country, explained why in a quietly delivered speech subsequently published at 145 U. Pa. L. Rev. 495 (1997). That's the 145th volume of the University of Pennsylvania Law review, article starting on page 495 to you non-lawyer types. Go check it out. I'll wait.

Now, if you can't go check it out (no subscription to the UPALREV or perhaps no hot & cold-running lexist/weslaw where you are), you should know this:

The speech, titled: PHILADELPHIA LAWYER: A CAUTIONARY TALE, contradicts what you are likely to have read about Owen Roberts. That is, you probably don't know of him at all, but if you'd heard the Switch in Time libel and believed it, this'll set you straight.

The cautionary tale (for such it is) has some high and low spots, as most lives will. The money quote is:

For almost sixty years Owen Roberts has been pilloried for the "Switch InTime." I think that one who criticizes him--as I do--for the decisionsleading up to the "Switch" ought to acknowledge that the Justice deserves praisefor having had the gumption to change his mind.

Pollak says that Roberts was "right in Korematsu" - high praise, considering how monumentally, how awfully, how completely wrong the majority in that case (323 U.S. 214 (1944) - that is to say, the 323rd volume of U.S. Reports at page 214 and following, decided by the highest court of the jurisdiction, here the Supreme Court, in the year 1944) was - but had an undistinguished tenure on the High Court.

As a Philadelphia lawyer myself, who hopes to avoid becoming a cautionary tale, I leave you with Pollak's haunting conclusion to his section on the infamous Switch in Time/ court-packing episode, as he describes Roberts' writing, at Frankfurter's request, of an explanatory memorandum that demonstrated that his decision was in fact principled:

One can sense how grievously Roberts's later years on the Court must havebeen shadowed by the "Switch In Time" calumny when one thinks about the lossof dignity the Justice must have felt as he drafted that exculpatory memorandum.